The Power of Perspectives

Paul Daly on getting lost in description

In the latest volume of the Canadian Bar Review, which examines the legacy of the former Supreme Court Justice Louis LeBel, Paul Daly explores the limits of language in administrative law, and LeBel’s role in clarifying our understanding of judicial review. CBA National sat down with the senior lecturer in public law at the University of Cambridge to ask him about why descriptive language in law can be more of burden than help.

CBA National: Why is administrative law such a difficult subject?

Paul Daly: Administrative law is tricky because it is a body of general principles that exist in the abstract and then they have to be applied to different substantive areas of law, which is a challenge. So, you have to apply it to employment law, environmental law, energy law, municipal law, immigration law, a whole host of areas which they themselves have very detailed rules and regulations. Already that gives you a degree of complexity. Then add to this the fact that principles of administrative law are quite recent and the area has undergone a radical reformulation in the last 50 years. And in Canada it's even more complicated because in trying to work through the general principles of administrative law, the Supreme Court of Canada made numerous U-turns and has created a body of case law that is difficult to navigate.

N: So what do you mean when you say that administrative jurists must appreciate the limits of language in reaching more accurate decisions?

PD: Well, the particular issue I deal with in the article is the attempt to distinguish between different standards of review [of administrative action], mainly between ordinary reasonableness and patent unreasonableness. A reasonableness standard is for questions that administrative decision makers should answer with a further distinction between situations in which courts should be really reluctant to intervene — that’s patent unreasonableness — and somewhat reluctant to intervene — that’s regular reasonableness. The distinctions are difficult to draw in principled terms, and the court attempted on many occasions to come up with a perfect verbal formulation of the distinction between regular reasonableness and patent reasonableness. It was unable to do so and caused great confusion in the process.

N: How so?

PD: The best the Supreme Court could come up with was, “well regular reasonableness just requires somewhat probing examination of a decision.” And that's fine as a description of what the courts are doing, but it doesn’t give much guidance to a judge on how to actually conduct the somewhat probing examination.

N: So how should courts approach the issue?

PD: Well, judges need to strip away the labels, strip away the terminological exactitude, stop the verbal gymnastics, stop using metaphors, stop using mission statements because these really only confuse matters. What matters in judicial review cases is whether there is a good reason to strike down the decision that's being challenged. Or is there a good reason to uphold the decision? That is the core of the court's task in a judicial review case. And using these various devices is just a distraction; it disguises what's really going on and judges should go straight to the question of whether the decision should stand or fall instead of using these devices which are only liable to cause confusion.

N: How would you describe former Justice Louis LeBel’s contribution to this issue?

PD: He was particularly influential in dealing with the terminological exactitude problem in distinguishing the different types of reasonableness. He essentially shone a light on it and demonstrated that the verbal gymnastics were not giving courts any real guidance on how to decide cases. And he said the distinction between regular reasonableness and patent unreasonableness was a mirage and advocated that the two standards ought to be collapsed into one, which is what he and the court accomplished in Dunsmuir in 2008.

N: And after Dunsmuir?

PD: I would say that Dunsmuir is a qualified achievement. On the one hand it repeats some of the errors of the past in using highfalutin language like justification, transparency and intelligibility, which really only is a description of what is being done rather than guidance to judges on how they ought to decide cases. But they do also refer to the rule of law and the principle of democracy as the underlying principles of Canadian administrative law. By doing so they managed to create at least the potential for Canadian administrative law to have a structure that it had not previously had.

N: Is this all just another way of saying, “try to use a little common sense”?

PD: I wouldn’t want to suggest that judges should feel unconstrained and just use their common sense instead of their legal training. What you need is a focus on the core of what administrative law cases are about, and not to dress up their opinions with metaphors and florid language. Concentrate on what's going on, which is an applicant is attacking a decision, says it is unreasonable or unfair and the judge's job is to explain why the decision is unreasonable and unfair or why the decision is reasonable and fair. Judges should be open and honest about the task that they are engaged in. It's better for the legal system if judges actually explain what they're doing. It's better for litigants and it's more fair to litigants if judges tell them or judges honestly explain the exercise that they're engaged in. So, for at least those two reasons it's important to focus on what judges should actually do on administrative law cases rather than engaging in these abstract descriptions of how they are deciding the cases.

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